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Who owns the copyright and inventions produced by an AI machine?

These articles are some of the interesting articles dealing with ownership of copyright and patentable inventions produced by an AI machine or robot.
  • Machine learning to machine owning: Redefining the copyright ownership from the perspective of Australian, US, UK and EU Law. European Intellectual Property Review(2018) 40 (11), pp. 722-728.  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3293518
  • Artificial Intelligence, Copyright and Accountability in the 3A Era: The Human-like Authors Are Already Here: A New Model, 2017 M. L. R<. 659   https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1199&context=lr
  • When Artificial Intelligence Systems Produce Inventions: The 3A Era and an Alternative Model for Patent Law (March 1, 2017). Cardozo Law Review, http://cardozolawreview.com/wp-content/uploads/2018/08/RAVID.LIU_.39.6.5-1.pdf
  • Recognizing Artificial Intelligence (AI) as Authors and Investors under U.S. Intellectual Property Law, 24 Rich. J.L. & Tech. i (2018), https://jolt.richmond.edu/files/2018/04/Pearlman_Recognizing-Artificial-Intelligence-AI-as-Authors-and-Inventors-Under-U.S.-Intellectual-Property-Law.pdf


  • Also, have a look at these videos about machine generated art:

    When are AI systems legally liable

    Here are some good readings if you are interested in the legal responsibility of AI systems:


  • Machines without Principals: Liability Rules and Artificial Intelligence, 89 Wash. L. Rev. 117 (2014)  http://euro.ecom.cmu.edu/program/law/08-732/AI/Vladeck.pdf
  • Regulating Artificial Intelligence Systems: Risks, Challenges, Competencies, and Strategies (May 30, 2015). Harvard Journal of Law & Technology, Vol. 29, No. 2, Spring 2016.  http://jolt.law.harvard.edu/articles/pdf/v29/29HarvJLTech353.pdf
  • Servers and Waiters: What Matters in the Law of A.I. 21 Stan. Tech. L. Rev. 167 (2018), https://law.stanford.edu/publications/servers-and-waiters-what-matters-in-the-law-of-a-i/
  • Accountable Algorithms, 165 U. Pa. L. Rev. 633 (2017) https://scholarship.law.upenn.edu/penn_law_review/vol165/iss3/3
  • Morality and AI Machines

    An interesting site from MIT -- a platform for judging human insight into moral decisions made by machines:

    http://moralmachine.mit.edu/

    How do you prepare for the AI revolution?

    This is a great book to help you prepare for the AI revolution that is about to hit us:




    Also, a similar book that is more general:


    Another ACCC case regarding misleading consumer reviews

    The ACCC has launched another case against ServiceSeeking regarding misleading online reviews of tradespeople.  See story here.

    This is similar to the Meriton case, discussed in posts below, regarding misleading hotel reviews on TripAdvisor.

    Copyright Act consultations

    The Australian Dept of Communication and the Arts has sought submissions for reforms to the Copyright Act.  The submissions are now public: https://www.communications.gov.au/have-your-say/copyright-modernisation-consultation

    See also the Productivity Commission's final report on Australia's Intellectual Property Arrangements.

    Patentable Subject Matter

    Rokt is fighting in Federal Court to have a patent application allowed.  The Commissioner of Patents is opposing the grant of the patent:  An invention that simply puts "a business method or scheme into a computer" is not patentable, the Commissioner of Patents told a court on the first day of a highly anticipated trial over a rejected software patent application by marketing tech startup Rokt.

    The judge hearing the case is Justice Robertson.  The oral argument went for 3 days, and finished on 20 July 2018.  The judge is now writing a written decision.

    See Australian Financial Review background story, and summary of Patent Office decision being appealed is here.

    See blog post here.

    Google may be liable for defamation for search engine results

    Today, the High Court of Australia decided that Google must go to trial to determine whether Google is liable for defamation regarding its display of search engine results and also in respect of Google's autocomplete function.

    See KWM article Google this: The High Court allows Google to be sued for defamation

    See Sydney Morning Herald article

    See HCA judgment Trkulja v Google LLC [2018] HCA 25

    .au Domain Names - Policy Review

    auDA has constituted a policy review panel to review virtually all domain name policies in Australia, as well as to recommend a policy to implement direct registration in Australia.  I am chair of this policy review panel.

    See https://www.auda.org.au/policies/panels-and-committees/2017-policy-review-panel/

    I strongly urge you to review the issues papers and to provide feedback.

    Direct registration will allow registration of domain names in Australia such as cyberspace.au.

    There are other reforms being discussed.  See the Issues Paper that was published at the end of January.


    Liability of Intermediaries for copyright infringement

    At the end of last year, the Federal Court of Australia issued a judgment in against the Redbubble platform, in favour of Pokemon.

    The judgment is here:  Pokémon Company International, Inc. v Redbubble Ltd [2017] FCA 154

    This is an important copyright and consumer protection law case.  Redbubble recently appealed (and its seems that their appeal was lodged outside of the appeal window).

    There is also a similar case pending, involving the Hell's Angels.

    A good summary is located on the IP Whiteboard blog.

    Google Found Responsible for Defamation

    The South Australian Full Court decided against Google Inc. in the recent case of Google v. Duffy.  See http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASCFC/2017/130.html

    Google's search results included defamatory material.  Google was found to be a secondary publisher.

    Case note here.

    AirBNB Hell

    An interesting website that points out the risks of using AirBNB for both hosts and guests, www.airbnbhell.com

    Digital Watermarks on Printed Documents

    "The question is how the government identified her so quickly, and the answer may be that she was inadvertently outed by the Intercept itself. That’s because the website posted an image of the leaked document containing an almost-invisible code applied by the printer that produced the document sent to the Intercept. The digital watermark identified the printer model and serial number, along with the time and date then document was printed out."

    See LA Times

    Meriton found guilty of manipulating TripAdvisor Reviews

    Serviced apartment and hotel operator Meriton was found to have engaged in illegal conduct by manipulating TripAdvisor reviews.  The ACCC sued Meriton and won.  The ACCC brought actions under s18 and the little used s34 of the Australian Consumer Law.

    See judgment at:  http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca1305

    According to the judgment, Meriton manipulated TripAdvisor in two ways:

    "The respondent (Meriton) conducts a business of offering serviced apartment accommodation at (at least) 13 properties in Queensland and New South Wales. These properties appear on the TripAdvisor website. During the period November 2014 to October 2015 (the relevant period), Meriton participated in the Review Express service offered by TripAdvisor.  On a weekly basis, Meriton provided TripAdvisor with the email addresses of guests who had stayed at its properties and TripAdvisor sent email invitations to these guests to post a review. However, rather than sending TripAdvisor the email addresses of all guests who had stayed at its properties (other than those who had requested that their details not be provided), Meriton adopted the following two practices:
    (a)    The first practice was to add the letters MSA” (which stand for Meriton Serviced Apartments) to the front of the email addresses of certain guests. This rendered the email address invalid. This practice was applied to guests who had made a complaint or were otherwise considered likely to have had a negative experience at a Meriton property.  I will refer to this practice as the MSA-masking practice.
    (b)    The second practice was to withhold from TripAdvisor the email addresses of all the guests who had stayed at a property during a period of time when there had been major service disruption (such as the lifts not working, no hot water, etc). I will refer to this practice as the bulk withholding practice."

    Alleged Illegal Conduct by Apple

    Apple is being sued in Australia by the ACCC in relation to the Error 53 software fault in iPhones.  When this fault bricked iPhones and iPads, Apple refused to fix the problem where third parties had done prior repairs. 

    The latest judgment on a procedural motion is http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca1329

    Regulation of Automated Vehicles in Australia

    The Australian National Transport Commission has released a discussion paper Regulatory options to assure automated vehicle safety in Australia.  The paper identifies 4 regulatory options for a safety assurance system for automated vehicle technology.

    Submissions for this discussion paper are open until 4pm, Friday, 28 July 2017.

    The NTC expects to present it preferred regulatory option to the Minister in November 2017.

    Metatags and Google advertisements found to be trademark infringements

    In an appeal decision handed down on Friday, the Full Court of the Federal Court of Australia has affirmed a trial judge's decision that metatags and Google advertisements were trademark infringements.

    The case is Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2017] FCAFC 56.

    The case concerned a real estate agent advertising short term accommodation, using the name of a nearby Accor hotel (which was a registered trademark) to attract Internet users to the real estate agent's booking website.

    The court confirmed findings of the trial judge that the following were trademark uses and trademark infringements:  use of of the trademark in the domain name, use in metatags for the website, use in headings for the website, use in email addresses, and use in Google advertisements.

    First Amendment and Social Media

    Social media and First Amendment issues were debated in oral argument before the US Supreme Court in Packingham v. North Carolina.

    See:  http://www.scotusblog.com/case-files/cases/packingham-v-north-carolina/

    Issue:  Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

    In oral argument on 27 February 2017, Justice Kennedy drew an analogy between social media and the public square.  Justice Ginsburg said restricting access to social media would mean being cut off from a very large part of the marketplace of ideas.  The First Amendment includes not only the right to speak, but the right to receive information.

    It is hard to control where your ads will appear online

    Advertisers are leaving YouTube, because their advertisements are being placed in close proximity to hate speech and other offensive material.

    See NY Times story, Perils of Online Ads

    Book - The Last Days of Night

    An interesting book, a novel, about a new lawyer in New York, Paul Cravath, who founded one of NY's best law firms, and his representation of Westinghouse against Edison in patent disputes.  The Last Days of Night.  It shows that patent disputes have been going on for 100 years whenever new technology suddenly blossoms.

    GST Tax obligations for non-Australian offshore sellers

    Recently, the Australian Taxation Office released a draft GST ruling (GSTR 2016/D1) to assist foreign suppliers of digital and other intangible products to determine when they will be liable to Australian GST (an indirect tax like VAT) on supplies they make to Australian consumers.
    The draft GST ruling explains what steps suppliers should take to collect evidence to establish whether or not the recipient of a supply is an Australian consumer.

    Assaults on Privacy in the USA

    A good article in Harvard Magazine titled "How surveillance changes people's behaviour: assaults on privacy in America."  See article here.

    EU ePrivacy

    On 10 January 2017, the European Commission published a Proposal for a Regulation could have significant implications for Internet-based services and technologies.
    The Proposal seeks to revise the current EU ePrivacy Directive.  It creates strict new rules regarding confidentiality of electronic communications, including content and metadata. In addition, the Proposal amends the current rules on the use of cookies and similar technologies, and direct marketing. The rules apply to EU and non-EU companies providing services in the EU, and are backed up by significant enforcement powers—fines of up to four percent of a company's global turnover.
    The Proposal is the next major step in the EU's review of its data protection legal framework and follows the adoption of the General Data Protection Regulation (GDPR) in April 2016.

    United States Copyright Office Releases Report on Software-Enabled Consumer Products

    Yesterday, the U.S. Copyright Office released a report titled "Software-Enabled Consumer Products."

    The report follows a year-long process, during which the Office studied how copyright law interacts with software-enabled consumer products, from cars, to refrigerators, to mobile phones, to thermostats and the like. 

    The report explores the various legal doctrines that apply to this subset of software, which is increasingly present in everyday life, including important copyright doctrines such as fair use, merger, scènes à faire, first sale, and the section 117 exemptions. The report focuses on specific issues raised in the public comments and hearings, including how copyright law affects licensing, resale, repair and tinkering, security research and interoperability.

    The Copyright Office's report found that current legal doctrines support a wide range of legitimate uses of the embedded software in consumer products while also recognizing the importance of copyright protection to the creation and distribution of innovative products. The report does not recommend legislative changes at this time.

    The full report and executive summary are available on the Copyright Office's website at http://copyright.gov/policy/software/.

    Apple Store Privacy Issues

    Do you trust Apple Store employees when they take away your phone to fix it?

    Staff in a Brisbane Apple Store reportedly lifted photos from some Apple customers' iPhones and took more than 100 close-up and explicit photos of female customers and staff without their knowledge.

    This raises both privacy and copyright issues.  It is also creepy.

    See Brisbane Times

    Swipes per minute

    In one minute, there are 4,166,667 Facebook likes, 347,222 tweets, 590,279 Tinder swipes and 284,722 Snapchat snaps.  See BRG

    Revenge Porn

    A story in the NY Times about a revenge porn civil case, and whether the decision by prosecutors to drop a corresponding criminal case will have any impact on the civil case.

    "In recent years, federal prosecutors in Los Angeles have earned a reputation for being particularly aggressive in pursuing cases against both former boyfriends and hackers selling unauthorized sexually explicit videos to websites. One notable case was the successful prosecution of Hunter Moore, who ran a now-defunct website that specialized in posting revenge porn videos that were stolen from people’s computers and posted without their permission.

    The decision to drop the charges against Mr. Elam may illustrate the difficulties in pursuing such cases because they require a jury not to hold the victim partly responsible for creating the sexually explicit images in the first place and either sharing them with a former partner or storing them on a cellphone."

    See NY Times

    Consequential Loss After Hacking Decision from the USA

    An interesting decision from the United States (11th Circuit appeals court) in Silvertop Systems -- decision here.

    There is an interesting discussion of consequential loss, that starts at the heading "LMT's Counterclaim for Breach of Contract"

    Facts were these:

    ·         Supplier (Silverpop) provided an email marketing service.  Customers loaded up email addresses and Supplier would send out mass emails in a form specified by the customer to addresses on the list.
    ·         Hackers got into the Supplier’s system and got access to several customer’s marketing lists, including LMT’s list.
    ·         The contract between Silverpop and LMT had a confidentiality clause (obligation to protect the list against unauthorised disclosure to third parties) and an exclusion of consequential loss.
    ·         Amongst the claims and counterclaims, was a claim from LMT that Silverpop had breached the confidentiality obligation and that the damage suffered by LMT was the sale value of the marketing list, which they said was now worthless.

    This is what the court decided – assuming it was correct that the value of the marketing list was now zero, that was a consequential loss.  The court discussed the difference between general damages and consequential damages (which is remarkably similar to the old English decision of Hadley v Baxendale).  The direct loss which would have been recoverable by LMT if there had been a breach of the confidentiality obligation was the loss of the value of the service (but that is not what LMT claimed).

    Discount Accommodation and Affiliate Payments

    Online travel agents make commissions of approximately 15% to 25% of the price of the accommodation booked.  Some share that commission with travellers through loyalty programs.  Others give discounts upfront, or share some of the commission with "affiliates" who refer other customers.  One such service is JetSetter, who has discount quality accommodation, and shares 5% with the guest and 5% with the referring affiliate.  See Jetsetter.  (I use this service by the way, and it is good.   I have stayed in luxury accommodation at great prices.)

    Another good referral program is OFX (OzForex) which is an international wire money transfer business.  It is in competition with Western Union, and is much better value.  See OFX website.

    Echo from Amazon

    The relatively new Echo device from Amazon is getting great press.  It will be interesting to see what legal issues arise from a voice controlled device in your home that connects with other systems.

    There is also the new Amazon Tap.

    Any why is Amazon opening physical book stores?


     

    Apple v The Government

    If you are following the Apple v US Government legal process over the FBI request to brute force break of the passcode on Syed Farook’s work phone, the link below has a good summary and also a link to the 65 page motion.

    Copyright in Instagram Photos

    See this article regarding a copyright claim in respect of Instagram photos.

    Story here.

    I have met a number of people who are earning good money promoting products on Instagram and on blogs.

    Business Method Patents In Australia

    After a long delay, the Australian Federal Court (Appeals Division) has finally decided the case of Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177.  This is an appeal from an appeal from a decision by the Commissioner of Patents not to grant a patent to a method and system for computerised collection of information relevant to assessment of a person’s competency for a recognised qualification standard.

    The case considered whether this invention was patentable subject matter in Australia.

    The Court decided that this invention was not patentable subject matter in Australian.

    "A claimed invention must be examined to ascertain whether it is in substance a scheme or plan or whether it can broadly be described as an improvement in computer technology. The basis for the analysis starts with the fact that a business method, or mere scheme, is not, per se, patentable. The fact that it is a scheme or business method does not exclude it from properly being the subject of letters patent, but it must be more than that. There must be more than an abstract idea; it must involve the creation of an artificial state of affairs where the computer is integral to the invention, rather than a mere tool in which the invention is performed. Where the claimed invention is to a computerised business method, the invention must lie in that computerisation. It is not a patentable invention simply to “put” a business method “into” a computer to implement the business method using the computer for its well- known and understood functions.

    Is the mere implementation of an abstract idea in a well-known machine sufficient to render patentable subject matter? Is the artificial effect that arises, because information is stored in RAM and there is communication over the Internet or wifi, sufficient? Does any physical effect give rise to a manner of manufacture? Are the mere presence of an artificial effect and economic utility, without more, sufficient to determine manner of manufacture?

    ... it is apparent that, other than the integers providing that the computer processes the criteria to generate corresponding questions and presents those questions to the user, the method does not include any steps that are outside the normal use of a computer. It is not suggested that the creation of the plurality of assessable criteria themselves form the basis of the claimed invention. They are present on the NTIS website from which they are retrieved. It is not suggested that the presentation of the questions or the processing of the user’s responses involve ingenuity themselves or that this constitutes the requisite manner of manufacture. 

    We conclude that the claimed invention is to a scheme or a business method that is not properly the subject of letters patent."

    See also IP Whiteboard

    Personal Information

    The Australian Administrative Appeals Tribunal has decided that companies who collect operational data about services they provide to individual end users, is not personal information about customers.

    See Telstra Corporation Limited and Privacy Commissioner [2015] AATA 99 (18 December 2015)

    The Advocate Defames The Bank on Social Media


    Michael Fraser, who goes under the name of The Advocate, operates a number of complaints-based websites, such as http://openadvicereview.com.au.  He had a big loss in court, in a defamation case brought by Commonwealth Bank.  See AFR story.

    United States Federal Circuit Judges Express Concerns for Current State of Patent Eligibility Law

    There will be no en banc review of a Federal Circuit panel decision that an important medical diagnostic method is ineligible for patent protection under 35 U.S.C. 101. However, in opinions accompanying the order denying review, several Federal Circuit judges expressed concerns for medical diagnostics under the current state of patent eligibility law. Ariosa Diagnostics, Inc. v. Sequenom, Inc., Fed. Cir., No. 14-1139, 2 December 2015.

    The patent at issue is directed at a process for detecting paternally-inherited fetal DNA in maternal blood samples and for performing a prenatal diagnosis based on that DNA. This method permits the diagnosis of possible birth defects without using highly intrusive measures.

    The Federal Circuit panel decision acknowledged that the invention in this case revolutionized prenatal care. However, it ruled that the claimed method is patent-ineligible under Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct. 1289 (2012), because it acts on natural phenomenon with well-understood, routine, and conventional steps. In a concurring opinion, Judge Linn reluctantly agreed but only because of the Supreme Court’s sweeping and unnecessary statements about patent eligibility.

    The Federal Circuit on December 2, 2015, denied the petition for en banc review.

    To read the opinions accompanying the en banc order in this case, click here; to read the panel decision in this case, click here.

    History of Software Patents in the United States

    A good article from the National Law Reviewing regarding the history of software patents in the U.S.

    See History

    Dot Horse

    An interesting blog post concerning the new Dot Horse gTLD:

    http://everythingtrademarks.com/2015/09/13/dot-horsing-around/

    "Despite its stated purpose, it has – inexplicably – brought together a community of equine parodists. "

    Ninth Circuit Rules That Copyright Holders Must Consider Fair Use Before Issuing DMCA Takedown Notice

    Media companies and other copyright holders may need to change the way they deal with infringing content on the Internet.  In a closely watched copyright case, Lenz v. Universal Music Corp. (also known as the "Dancing Baby" case), the United States Court of Appeals for the Ninth Circuit ruled yesterday that copyright holders must consider fair use before issuing takedown notices to remove allegedly infringing content from websites such as YouTube and Facebook. This decision has significant implications for owners of copyright-protected content, especially studios, record labels, publishers and other entities with large content catalogs, as well as individuals and businesses that rely on fair use to exploit copyrighted material owned by others. 

    Redlands Council Threatens Lawsuit against Facebook Posters

    See Brisbane Times

    "Redland City Council has sought to shut down online criticism by sending threatening legal letters to residents over comments made on social media.

    Five residents have received the legal threats in the past week over Facebook posts that suggested, among other things, that political donations from developers had swayed council decisions."

    Australian Government releases survey into online copyright infringement

    The research is said to show that Australia has high levels of online copyright infringement.

    See Government Website with full survey results.

    Copyright and eBooks

    From Australian Copyright Agency:

    The UK Publisher’s Association has successfully gained an order to have that country’s five main internet service providers block consumer access to websites promoting the online theft of ebooks.
    Investigations found at least 80 per cent of the reportedly 10 million ebook titles on seven offshore websites were infringing copyright and almost a million takedown notices had been issued to the sites. The sites make substantial sums of money from referral fees and advertising, with none of that income returning to publishers or authors.
    The UK Publishers Association Chief Executive, Richard Mollet, said: “A third of publisher revenues now come from digital sales but unfortunately this rise in the digital market has brought with it a growth in online infringement. Our members need to be able to protect their authors’ works from such illegal activity; writers need to be paid and publishers need to be able to continue to innovate and invest in new talent and material.” Read the media release here.
    The UK decision reflects our own situation in Australia where a two-pronged approach aims to curb online piracy.
    Firstly, the creative and telecommunications sectors have jointly established a new code to combat internet piracy. It involves an escalating series of infringement notices being issued to repeat infringers and has been submitted for registration to the Australian Communications and Media Authority.
    At the same time, the Federal Government has legislation before the Senate to allow rights holders to apply to a court for an order requiring ISPs to block offshore websites promoting online theft.
    The Copyright Agency supports these moves and will continue to campaign for copyright and stand up for creators’ rights.
    Murray St Leger,

    Chief Executive

    Should you go to law school in Australia?

    You may have seen reference to the New South Wales Law Society report on the “Future Prospects of Law Graduates” in last Friday’s Australian. If you have not seen the full report here is the link to it. http://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/980877.pdf

    Dallas Buyers Club decision - who won?

    The Australian Federal Court decided today that ISP iiNet was required to identify some of its customers who have downloaded the movie "Dallas Buyers Club".  The court imposed restrictions and costs on the copyright holder.  No email addresses were ordered to be disclosed.  Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317.

    See Court Decision and SMH Article.

    Music Copyright

    "On Tuesday, a federal jury in Los Angeles concluded that Robin Thicke and Pharrell Williams, the performer and primary songwriter-producer of the 2013 pop hit “Blurred Lines,” committed copyright infringement by using elements of the 1977 Marvin Gaye song “Got to Give It Up” in their composition without proper credit. The jury awarded Mr. Gaye’s family approximately $7.3 million, a combination of profits from the song and damages. That’s an attention-getting amount of money, but the verdict itself is far more damning."

    See NYT article

    Left Shark Copyright

    An interesting story about copyright in a costume for dancing shark.  Read the lawyer's response at the end of the story.

    Copyright Infringement Detection Service

    An interesting service from South Australia, called www.plfer.com.  It is a copyright infringement detection service.  Created by the founder of Davnet.  See story here.

    Recommended Reading

    I recommend these recent books, which relate to law and technology.  Kindle editions are available.






    User Generated Content

    An interesting story from England.  A hotel fined a guest for a bad review on TripAdvisor.

    See Couple Fined by Hotel for Bad Review

    See also this article, that mentions some lawsuits regarding user generated content

    Computer Implemented Method Not Patentable Subject Matter in Australia

    A unanimous Full Federal Court in Australia today decided that a computer implemented method of creating an investment index is not patentable, on the basis that the substance of the claimed invention – an abstract idea or scheme – was itself not patentable subject matter, and simply implementing that invention via a computer would not render it patentable.

    See Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150

    See also this case note.

    Many internet related inventions may not be patentable subject matter in Australia as a result of this decision.

    Hate Speech on Facebook

    If someone posts something hateful, and possibly illegal, on your Facebook page, what should you do?

    See Smart Company article about Anzac biscuits.

    Negligence and pure economic loss

    Australian High Court decision on concurrent liability in contract and negligence for pure economic loss.
    
    
    Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36 (8 October 2014): http://www.austlii.edu.au/au/cases/cth/HCA/2014/36.html
    A unanimous decision against finding concurrent liability in negligence to a contractual counterparty who had the opportunity to negotiate non-price terms with a builder. Would a software or IT enterprise customer be in any different position when dealing with a technology or telco provider?

    Reloadable Cards

    There appears to be a market for reloadable payment cards.  Part of the growth in this market is driven by online sales of goods and services.  See article on eMerchants.

    New Zealand AdWords Case

    Trade mark infringement found when competitor purchased Google AdWords that were trademarks of the other.

    InterCity Group (NZ) Ltd v Nakedbus NZ Ltd [2013] NZHC 379 


    See also comment.

    Use of a competitor's mark in advertising could amount to an infringement of their trade mark unless it is clearly for descriptive or comparative purposes only e.g. if the advertisement includes sufficient text to differentiate the product or service that of the competitor. 

    Legal Lessons from the Ice Bucket Challenge

    See this article:  Legal Lessons from the Ice Bucket Challenge.

    "Viral cause marketing is an enticing way to build attention for a brand. Before you embark on a strategy that seeks to copy the summer phenomenon of the ALS Ice Bucket Challenge, consider the legal ramifications."

    Defamation and the liability of search engine providers

    The following Supreme Court of NSW decision was delivered last week by McCallum J: Bleyer v Google Inc [2014] NSWSC 897 http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172529.
    
    
    Her Honour expressly declined to follow Beach J in Trkulja v Google, and preferred the English line of cases. This was not a final decision on the merits (consideration was in the context of a permanent stay application, given low prospects of success), however the reasoning in this case is likely to be given significant weight in any future consideration of these issues. Her Honour does leave open the question, however, of whether liability may arise once notification of a complaint is received by the search engine provider.
    
    An extract:
    
    [83]  The evidence before me establishes that there is no human input in the application of the Google search engine apart from the creation of the algorithm. I would respectfully disagree with the conclusion reached by Beach J in Trkulja that the performance of the function of the algorithm in that circumstance is capable of establishing liability as a publisher at common law. I would adopt the English line of authority to the effect that, at least prior to notification of a complaint (and on the strength of the evidence before me), Google Inc cannot be liable as a publisher of the results produced by its search engine.

    The Master Switch

    I have just finished reading an excellent book, called "The Master Switch" by Tim Wu.  It is not a legal book, but more of an economic history.  It has a number of references to patent law.  Well worth reading.

    Privacy

    The Australian Privacy Commissioner has released a revised guide to "reasonable steps" to protect personal information.

    Comments due 27 August.

    "Effective ICT security requires protecting both computer hardware (the physical devices that make up a computer system) as well as the data (including personal information) that the computer hardware holds from misuse, interference, loss, unauthorised access, modification and disclosure. However, ICT security measures should also ensure that the hardware and the information stored on it remain accessible and useful to legitimate users."


    However, absolute security is not only impossible but undesirable.  See for example, here and here

    Letter from Amazon

    Amazon wrote a detailed letter to authors, regarding e-book pricing.  See full text of letter here.

    The letter asks authors to email Hachette's CEO directly.

    WSJ article about the letter.

    Online Copyright Infringement

    The Australian Government has today released the Online Copyright Infringement Discussion Paper and is seeking public submissions on the draft proposals designed to address online piracy.
    Australia has one of the highest rates of online copyright piracy in the world. This has a significant impact on Australia’s creative industries, including music, television, cinema, software, broadcast and publishing industries, which employ more than 900,000 people and generates more than $90 billion in economic value each year.
    The ease with which copyrighted content can be digitised and distributed online means there is no easy solution to preventing online copyright infringement.  International experience has shown that a range of measures are necessary to reduce piracy and ensure that we can continue to take full advantage of the legitimate opportunities to create, provide and enjoy content in a digital environment. 
    Everyone has a role to play in reducing online copyright infringement. Rights holders need to ensure that content can be accessed easily and at a reasonable price. Internet service providers (ISPs) can take reasonable steps to ensure their systems are not used to infringe copyright. Consumers can do the right thing and access content lawfully.
    The Government’s preference is to create a legal framework that will facilitate industry cooperation to develop flexible and effective measures to combat online piracy. This Discussion Paper seeks the views of the public and stakeholders on proposals to establish such a legal framework.
    Importantly, the Government expects that consumer interests will be taken into account in the development of any industry scheme or commercial arrangements.
    The Discussion Paper is available on the Online copyright infringement—public consultation page of the Attorney-General’s Department website. Submissions are sought by end of 1 September 2014 and can be emailed to copyrightconsultation@ag.gov.au.
    From King & Wood Mallesons:
    The proposals are of most interest to copyright owners, to ISPs and to online intermediaries, although the proposed authorisation amendment to the Copyright Act 1968 (Cth) may have a broader application.
    In this alert we look at the three proposals outlined in the Discussion Paper, and further questions raised within it.

    Trademarks and website headings

    In a decision by the Full Court of the Federal Court of Australia, it was decided that use of the generic term "Lift Shop" in the title of a webpage was not trademark infringement.

    See:  Lift Shop v. Easy Living Home Elevators [2014] FCAFC 75

    See also comment.

    A Town Like Alice

    The U.S. Supreme Court decided the Alice Corp v. CLS Bank patent case today.

    In a unanimous decision authored by Justice Thomas, the Supreme Court today affirmed the Federal Circuit’s en banc decision invalidating the patents asserted by Alice Corporation against CLS Bank International as ineligible for patent protection under 35 U.S.C. §101 because they are directed to an abstract idea. See Alice Corporation Pty. Ltd. v. CLS Bank International et al. (U.S. June 19, 2014). 

    In an opinion by Justice Thomas, today’s Supreme Court opinion held that:

    [T]he claims at issue are drawn to the abstract idea of intermediated settlement, and that merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention.

    In applying Mayo step one, the Court determined that Alice’s claims were drawn to the abstract concept of intermediated settlement (i.e., the use of a third party to mitigate settlement risk). Rejecting Alice’s arguments that the abstract-ideas category is confined to preexisting fundamental truths that exist apart from any human action, the Court ruled that intermediated settlement has long been a fundamental practice in our system of commerce, and recognized that Alice’s claims to intermediated settlement were not meaningfully distinguishable from the risk hedging claims it previously held to be abstract in Bilski v. Kappos, 561 U.S. 593 (2010).

    In a brief concurring opinion, Justice Sotomayor, joined by Justices Ginsburg and Breyer, opined that claims to business methods are ineligible per se for patent protection, because they do not qualify as a process under 35 U.S.C. §101.

    See note from WilmerHale and prior blog posts below.

    Machines v Lawyers

    "Some observers, not implausibly, blame the recession for these developments. But the plight of legal education and of the attorney workplace is also a harbinger of a looming transformation in the legal profession. Law is, in effect, an information technology—a code that regulates social life. And as the machinery of information technology grows exponentially in power, the legal profession faces a great disruption not unlike that already experienced by journalism, which has seen employment drop by about a third and the market value of newspapers devastated. The effects on law will take longer to play themselves out, but they will likely be even greater because of the central role that lawyers play in public life."

    See Full Article - Machines v. Lawyers

    Privacy in the Digital Era

    The Australian Government announces the release of the Discussion Paper for this Inquiry, Serious Invasions of Privacy in the Digital Era (DP 80).  
    The Discussion Paper provides a detailed account of ALRC research so far, and includes 48 proposals and a number of questions for people to consider and provide feedback on. The ALRC is proposing a model for a new statutory cause of action for serious invasions of privacy to be included in a new Commonwealth Act, and also is putting forward other alternative proposals to strengthen privacy protection.
    The Discussion Paper is available in HTML, PDF, and as an ebook.
    ·         See Media Release >>

    ·         See Discussion Paper >>

    Software and Internet patents

    On Monday, the United States Supreme Court is scheduled to hear arguments in what has been described as the most important intellectual property case in a decade: Alice v. CLS Bank.  One party in this case is an Australian company, that owns the patent in question.

    Prior blog posts are here and here

    A NYTimes opinion article is worth reading.

    Cloud Speeds

    An interesting non-legal article looking at the various Cloud services and comparing speeds:  ComputerWorld.

    Who Owns the Internet?

    Two Harvard Law School experts — Jonathan Zittrain '95, Professor of Law and Faculty Co-Director, Berkman Center for Internet and Society, and Susan Crawford, John A. Reilly Visiting Professor in Intellectual Property — weigh in on a lawsuit in federal court that may decide whether Web access remains open and neutral.  Read More 

    Privacy Guidelines in Australia

    The Privacy Guidelines are no longer consultation drafts – the final version was released today (link below).

    They have reversed their view on the application of the Privacy Act to foreign website operators.  So much so that the guidelines now conclude that “Where an entity merely has a website that can be accessed from Australia, this is generally not sufficient to establish that the website operator is ‘carrying on a business’ in Australia

    Who owns the copyright and inventions produced by an AI machine?

    These articles are some of the interesting articles dealing with ownership of copyright and patentable inventions produced by an AI machine ...